California v. Ramos, 463 U.S. 992 (1983)

8/17/2019 California v. Ramos, 463 U.S. 992 (1983)

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463 U.S. 992

103 S.Ct. 3446

77 L.Ed.2d 1171

CALIFORNIA, Petitioner,

v.Marcelino RAMOS.

No. 81-1893.

Argued Feb. 22, 1983.

Decided July 6, 1983.

Syllabus

At the guilt phase of respondent's state-court trial, the jury returned a

verdict of guilt on a count of first-degree murder, which is punishable

under California law by death or life imprisonment without the possibility

of parole where an alleged "special circumstance" (here the commission of

murder during a robbery) is found true by the jury at the guilt phase. In

addition to requiring jury instructions at the separate penalty phase onaggravating and mitigating circumstances, California law requires that the

trial judge inform the jury that a sentence of life imprisonment without the

possibility of parole may be commuted by the Governor to a sentence that

includes the possibility of parole (the so-called Briggs Instruction). At the

penalty phase of respondent's trial, the judge's instructions included the

Briggs Instruction. The jury returned a verdict of death. The California

Supreme Court affirmed respondent's conviction but reversed the death

penalty, concluding that the Briggs Instruction violated the FederalConstitution, and remanded the case for a new penalty phase.

Held:

1. The Federal Constitution does not prohibit an instruction permitting a

capital sentencing jury to consider the Governor's power to commute a life

sentence without possibility of parole. Pp. 997-1009.

(a) The possible commutation of a life sentence does not impermissibly

inject an element too speculative for the jury's consideration. By bringing

to the jury's attention the possibility that the defendant may be returned to

society, the Briggs Instruction invites the jury to assess whether the


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defendant is someone whose probable future behavior makes it

undesirable that he be permitted to return to society, thus focusing the jury

on the defendant's probable future dangerousness. A jury's consideration

of the factor of future dangerousness was upheld in Jurek v. Texas, 428

U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. Nor does giving the Briggs

Instruction result in any diminution in the reliability of the sentencing

decision of the kind condemned in Gardner v. Florida, 430 U.S. 349, 97S.Ct. 1197, 51 L.Ed.2d 393, which held that a death sentence may not be

imposed on the basis of a presentence investigation report containing

information that the defendant has had no opportunity to explain or deny.

The Briggs Instruction gives the jury accurate information of which both

the defendant and his counsel are aware, and it does not preclude the

defendant from offering any evidence or argument regarding the

Governor's power to commute a life sentence. Pp. 1001-1004.

(b) The Briggs Instruction is not constitutionally infirm on the asserted

ground that it deflects the jury's focus from its central task of undertaking

an individualized sentencing determination. In the sense that the

instruction focuses attention on the defendant's future dangerousness, the

jury's deliberation is individualized. Also, the California sentencing

system ensures that the jury will have before it information regarding the

individual characteristics of the defendant and his offense. The Briggs

Instruction simply places before the jury an additional element to be

considered, along with many other factors, in determining which sentence

is appropriate under the circumstances of the defendant's case. It does not

affect the jury's guilt/innocence determination. Beck v. Alabama, 447 U.S.

625, 100 S.Ct. 2382, 65 L.Ed.2d 392, distinguished. Finally, informing the

jury of the Governor's power to commute a sentence of life without

possibility of parole is merely an accurate statement of a potential

sentencing alternative, and corrects the misconception conveyed by the

phrase "life imprisonment without possibility of parole." Pp. 1005-1009.

2. Nor is the Briggs Instruction unconstitutional because it fails to inform

the jury also of the Governor's power to commute a death sentence. Even

assuming, arguendo, that the Briggs Instruction has the impermissible

effect of skewing the jury toward imposing the death penalty, an

instruction on the Governor's power to commute death sentences as well

as life sentences would not restore "neutrality" or increase the reliability of

the sentencing choice. In fact, advising jurors that a death verdict is

theoretically modifiable, and thus not "final," may incline them toapproach their sentencing decision with less appreciation for the gravity of

their choice and for the moral responsibility reposed in them as

sentencers. Thus, an instruction disclosing the Governor's power to


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commute a death sentence may operate to the defendant's distinct

disadvantage. Moreover, the Briggs Instruction alone does not

impermissibly impel the jury toward voting for the death sentence. This

information is relevant and factually accurate and was properly before the

jury, and the trial judge's instructions did not emphasize the role of this

factor in the jury's decision. Pp. 1010-1012.

3. The conclusion that the Eighth and Fourteenth Amendments do not

prohibit an instruction regarding a Governor's power to commute a life

sentence, does not override the judgment of state legislatures that capital

sentencing juries should not be permitted to consider such matter. The

States are free to provide greater protections in their criminal justice

system than the Federal Constitution requires. Pp. 1013-1014.

30 Cal.3d 553, 180 Cal.Rptr. 266, 639 P.2d 908 (1982), reversed and

remanded.

Harley D. Mayfield, San Diego, Cal., for petitioner.

Ezra Hendon, San Francisco, Cal., for respondent.

Justice O'CONNOR delivered the opinion of the Court.

1 This case requires us to consider the constitutionality under the Eighth and

Fourteenth Amendments of instructing a capital sentencing jury regarding the

Governor's power to commute a sentence of life without possibility of parole.

Finding no constitutional defect in the instruction, we reverse the decision of

the Supreme Court of California and remand for further pr ceedings.

2 * On the night of June 2, 1979, respondent Marcelino Ramos participated in the

robbery of a fast food restaurant where he was employed as a janitor. Asrespondent's codefendant placed a food order, respondent entered the

restaurant, went behind the front counter into the work area ostensibly for the

purpose of checking his work schedule, and emerged with a gun. Respondent

directed the two employees working that night into the restaurant's walk-in

refrigerator and ordered them to face the back wall. Respondent entered and

emerged from the refrigerator several times, inquiring at one point about the

keys to the restaurant safe. When he entered for the last time, he instructed the

two employees to kneel on the floor of the refrigerator, to remove their hats,and to pray. Respondent struck both on the head and then shot them, wounding

one and killing the other.


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3 Respondent was charged with robbery, attempted murder, and first degree

murder. Defense counsel presented no evidence at the guilt phase of

respondent's trial, and the jury returned a verdict of guilt on all counts. Under

California law, first degree murder is punishable by death or life imprisonment

without the possibility of parole where an alleged "special circumstance" is

found true by the jury at the guilt phase.1 At the separate penalty phase,

respondent presented extensive evidence in an attempt to mitigate punishment.2

In addition to requiring jury instructions on aggravating and mitigating

circumstances,3 California law requires that the trial judge inform the jury that

a sentence of life imprisonment without the possibility of parole may be

commuted by the Governor to a sentence that includes the possibility of

parole.4 At the penalty phase of respondent's trial, the judge delivered the

following instruction:

4 "You are instructed that under the State Constitution a Governor is empowered

to grant a reprieve, pardon, or commutation of a sentence following conviction

of a crime.

5 "Under this power a Governor may in the future commute or modify a sentence

of life imprisonment without possibility of parole to a lesser sentence that

would include the possibility of parole." Tr. 1189-1190.5

6 The jury returned a verdict of death.

7 On appeal the Supreme Court of California affirmed respondent's conviction

but reversed the death sentence, concluding that the Briggs Instruction required

by Cal.Penal Code Ann. § 190.3 violated the Federal Constitution. People v.

Ramos, 30 Cal.3d 553, 180 Cal.Rptr. 266, 639 P.2d 908 (1982). The court

found two constitutional flaws in the instruction. First it invites the jury to

consider factors that are foreign to its task of deciding whether the defendantshould live or die. According to the State Supreme Court, instead of assuring

that this decision rests on "consideration of the character and record of the

individual offender and the circumstances of the particular offense," Woodson

v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944

(1976), the instruction focuses the jury's attention on the Governor's power to

render the defendant eligible for parole if the jury does not vote to execute him

and injects an entirely speculative element into the capital sentencing

determination. Second, the court concluded that because the instruction doesnot also inform the jury that the Governor possesses the power to commute a

death sentence, it leaves the jury with the mistaken belief that the only way to

keep the defendant off the streets is to condemn him to death. Accordingly, the


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II

court remanded for a new penalty phase.6

8 We granted certiorari, 459 U.S. ----, 103 S.Ct. 49, 74 L.Ed.2d 56 (1982), and

now reverse and remand.7

9 In challenging the constitutionality of the Briggs Instruction, respondent

presses upon us the two central arguments advanced by the Supreme Court of

California in its decision. He contends (1) that a capital sentencing jury may not

constitutionally consider 8 possible commutation, and (2) that the Briggs

Instruction unconstitutionally misleads the jury by selectively informing it of

the Governor's power to commute one of its sentencing choices but not the

other. Respondent's first argument raises two related, but distinct concerns

— viz., that the power of commutation is so speculative a factor that it injects anunacceptable level of unreliability into the capital sentencing determination,

and that consideration of this factor deflects the jury from its constitutionally

mandated task of basing the penalty decision on the character of the defendant

and the nature of the offense. We address these points in Parts IIB and C, infra,

and respondent's second argument in Part III, infra. Before turning to the

specific contentions of respondent's first argument, however, we examine the

general principles that have guided this Court's pronouncements regarding the

proper range of considerations for the sentencer in a capital case.

10 The Court, as well as the separate opinions of a majority of the individual

Justices, has recognized that the qualitative difference of death from all other

punishments requires a correspondingly greater degree of scrutiny of the capital

sentencing determination.9 In ensuring that the death penalty is not meted out

arbitrarily or capriciously, the Court's principal concern has been more with the

procedure by which the State imposes the death sentence than with the

substantive factors the State lays before the jury as a basis for imposing death,once it has been determined that the defendant falls within the category of

persons eligible for the death penalty. In Gregg v. Georgia, 428 U.S. 153, 96

S.Ct. 2909, 49 L.Ed.2d 859 (1976), and its companion cases,10 the Court

reviewed the capital sentencing schemes of five States to determine whether

those schemes had cured the constitutional defects identified in Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Gregg itself,

the joint opinion of Justices Stewart, POWELL, and STEVENS concluded that

the Georgia sentencing scheme met the concerns of Furman by providing a bifurcated proceeding, instruction on the factors to be considered, and

meaningful appellate review of each death sentence. 428 U.S., at 189-195, 96

S.Ct., at 2932-2935 (opinion of Stewart, POWELL, and STEVENS, JJ.).


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B

Satisfied that these procedural safeguards "suitably directed and limited" the

jury's discretion "so as to minimize the risk of wholly arbitrary and capricious

action," id., at 189, 96 S.Ct., at 2932, the joint opinion did not undertake to

dictate to the State the particular substantive factors that should be deemed

relevant to the capital sentencing decision. Indeed, the joint opinion observed:

"It seems clear that the problem [of channeling jury discretion] will be

alleviated if the jury is given guidance regarding the factors about the crimeand the defendant that the State, representing organized society, deems

particularly relevant to the sentencing decision." Id., at 192, 96 S.Ct., at 2934

(emphasis added). See also id., at 176, 96 S.Ct., at 2926 ("The deference we

owe to the decisions of the state legislatures under our federal system . . . is

enhanced where the specification of punishments is concerned, for 'these are

peculiarly questions of legislative policy' ").11

11 It would be erroneous to suggest, however, that the Court has imposed nosubstantive limitations on the particular factors that a capital sentencing jury

may consider in determining whether death is appropriate. In Gregg itself the

joint opinion suggested that excessively vague sentencing standards might lead

to the arbitrary and capricious sentencing patterns condemned in Furman. 428

U.S., at 195, n. 46, 96 S.Ct., at 2935, n. 46.12 Moreover, in Woodson v. North

Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the plurality

concluded that a State must structure its capital sentencing procedure to permit

consideration of the individual characteristics of the offender and his crime.13This principle of individualization was extended in Lockett v. Ohio, 438 U.S.

586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), where the plurality determined that

"the Eighth and Fourteenth Amendments require that the sentencer [in a capital

case] not be precluded from considering, as a mitigating factor, any aspect of a

defendant's character or record and any of the circumstances of the offense that

the defendant proffers as a basis for a sentence less than death." Id., at 604, 98

S.Ct., at 2964 (emphasis in original) (footnotes omitted).14 Finally, in Gardner

v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), a plurality of the Court held that a death sentence may not be imposed on the basis of a

presentence investigation report containing information that the defendant has

had no opportunity to explain or deny.

12 Beyond these limitations, as noted above, the Court has deferred to the State's

choice of substantive factors relevant to the penalty determination. In our view,

the Briggs Instruction does not run afoul of any of these constraints.

13 Addressing respondent's specific arguments, we find unpersuasive the


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suggestion that the possible commutation of a life sentence must be held

constitutionally irrelevant15 to the sentencing decision and that it is too

speculative an element for the jury's consideration. On this point, we find Jurek

v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), controlling.

14 The Texas capital sentencing system upheld in Jurek limits capital homicides to

intentional and knowing murders committed in five situations. Id., at 268, 96S.Ct., at 2954. Once the jury finds the defendant guilty of one of these five

categories of murder, the jury must answer three statutory questions.16 If the

jury concludes that the State has proved beyond a reasonable doubt that each

question is answered in the affirmative, then the death sentence is imposed. In

approving this statutory scheme, the joint opinion in Jurek rejected the

contention that the second statutory question—requiring consideration of the

defendant's future dangerousness—was unconstitutionally vague because it

involved prediction of human behavior.

15 "It is, of course, not easy to predict future behavior. The fact that such a

determination is difficult, however, does not mean that it cannot be made.

Indeed, prediction of future criminal conduct is an essential element in many of

the decisions rendered throughout our criminal justice system. . . . And any

sentencing authority must predict a convicted person's probable future conduct

when it engages in the process of determining what punishment to impose. For

those sentenced to prison, these same predictions must be made by paroleauthorities. The task that a Texas jury must perform in answering the statutory

question in issue is thus basically no different from the task performed

countless times each day throughout the American system of criminal justice.

What is essential is that the jury have before it all possible relevant information

about the individual defendant whose fate it must determine. Texas law clearly

assures that all such evidence will be adduced." Id., at 274-276, 96 S.Ct., at

2957-2958 (footnotes omitted).

16 By bringing to the jury's attention the possibility that the defendant may be

returned to society, the Briggs Instruction invites the jury to assess whether the

defendant is someone whose probable future behavior makes it undesireable

that he be permitted to return to society. Like the challenged factor in Texas'

statutory scheme, then, the Briggs Instruction focuses the jury on the

defendant's probable future dangerousness.17 The approval in Jurek of explicit

consideration of this factor in the capital sentencing decision defeats

respondent's contention that, because of the speculativeness involved, the Stateof California may not constitutionally permit consideration of commutation.18

17 Nor is there any diminution in the reliability of the sentencing decision of the


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C

kind condemned in Gardner v. Florida, supra. In Gardner, the Court reversed a

death sentence that had been imposed in part on the basis of a confidential

portion of a presentence investigation report that had not been disclosed to

either the defendant or his counsel. Because of the potential that the sentencer

might have rested its decision in part on erroneous or inaccurate information

that the defendant had no opportunity to explain or deny, the need for reliability

in capital sentencing dictated that the death penalty be reversed. Gardner provides no support for respondent. The Briggs Instruction gives the jury

accurate information of which both the defendant and his counsel are aware,

and it does not preclude the defendant from offering any evidence or argument

regarding the Governor's power to commute a life sentence.19

18 Closely related to, yet distinct from respondent's speculativeness argument isthe contention that the Briggs Instruction is constitutionally infirm because it

deflects the jury's focus from its central task. Respondent argues that the

commutation instruction diverts the jury from undertaking the kind of

individualized sentencing determination that, under Woodson v. North

Carolina, 428 U.S., at 304, 96 S.Ct., at 2991, is "a constitutionally

indispensable part of the process of inflicting the penalty of death."

19 As we have already noted, supra, at 1003, as a unctional matter the BriggsInstruction focuses the jury's attention on whether this particular defendant is

one whose possible return to society is desirable. In this sense, then, the jury's

deliberation is individualized. The instruction invites the jury to predict not so

much what some future Governor might do, but more what the defendant

himself might do if released into society.

20 Any contention that injecting this factor into the jury's deliberations constitutes

a departure from the kind of individualized focus required in capital sentencingdecisions was implicitly rejected by the decision in Jurek. Indeed, after noting

that consideration of the defendant's future dangerousness was an inquiry

common throughout the criminal justice system, the joint opinion of Justices

Stewart, POWELL, and STEVENS observed: "What is essential is that the jury

have before it all possible relevant information about the individual defendant

whose fate it must determine. Texas law clearly assures that all such evidence

will be adduced." 428 U.S., at 276, 96 S.Ct., at 2958. As with the Texas

scheme, the California sentencing system ensures that the jury will have beforeit information regarding the individual characteristics of the defendant and his

offense, including the nature and circumstances of the crime and the

defendant's character, background, history, mental condition, and physical


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condition. Cal.Penal Code Ann. § 190.3 (West Supp.1983).20

21 Respondent also relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65

L.Ed.2d 392 (1980), as support for his contention that the Briggs Instruction

undermines the jury's responsibility to make an individualized sentencing

determination. In Beck the Court held that the jury in a capital case must be

permitted to consider a verdict of guilt of a non-capital offense where theevidence would support such a verdict. In disapproving the Alabama statute

that precluded giving a lesser included offense charge in capital cases, the

Court concluded that the chief flaw of the statute "is that it interjects irrelevant

considerations into the factfinding process, diverting the jury's attention from

the central issue of whether the State has satisfied its burden of proving beyond

a reasonable doubt that the defendant is guilty of a capital crime." Id., at 642,

100 S.Ct., at 2392. The failure to give a lesser included offense instruction

"diverted" the jury in two ways: a jury might convict a defendant of a capitaloffense because of its belief that he is guilty of some crime, or, given the

mandatory nature of the death penalty under Alabama law, the jury might

acquit because it does not think that the defendant's crime warrants death. Id., at

642-643, 100 S.Ct., at 2392. According to the respondent, he Briggs

Instruction, like the removal of the lesser included offense option in Beck,

predisposes the jury to act without regard to whether the death penalty is called

for on the facts before it.

22 We are unconvinced that the Briggs Instruction constrains the jury's sentencing

choice in the manner condemned in Beck. Restricting the jury in Beck to the

two sentencing alternatives conviction of a capital offense or acquittal—in

essence placed artificial alternatives before the jury. The unavailability of the

"third option" thereby created the risk of an unwarranted conviction. By

contrast, the Briggs Instruction does not limit the jury to two sentencing

choices, neither of which may be appropriate. Instead, it places before the jury

an additional element to be considered, along with many other factors, indetermining which sentence is appropriate under the circumstances of the

defendant's case.

23 More to the point, however, is the fundamental difference between the nature

of the guilt/innocence determination at issue in Beck and the nature of the

life/death choice at the penalty phase. As noted above, the Court in Beck

identified the chief vice of Alabama's failure to provide a lesser included

offense option as deflecting the jury's attention from "the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt

that the defendant is guilty of a capital crime." Id., at 642, 100 S.Ct., at 2392

(emphasis added). In returning a conviction, the jury must satisfy itself that the


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III

necessary elements of the particular crime have been proved beyond a

reasonable doubt. In fixing a penalty, however, there is no similar "central

issue" from which the jury's attention may be diverted.21 Once the jury finds

that the defendant falls within the legislatively defined category of persons

eligible for the death penalty, as did respondent's jury in determining the truth

of the alleged special circumstance, the jury then is free to consider a myriad of

factors to determine whether death is the appropriate punishment. In this sense,the jury's choice between life and death must be individualized. "But the

Constitution does not require the jury to ignore other possible . . . factors in the

process of selecting . . . those defendants who will actually be sentenced to

death." Zant v. Stephens, --- U.S., at ----, 103 S.Ct., at 2743 (footnote omitted).

As we have noted, the essential effect of the Briggs Instruction is to inject into

the sentencing calculus a consideration akin to the aggravating factor of future

dangerousness in the Texas scheme. See p. 1003 supra. This element "is simply

one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant." Id., at ----, 103 S.Ct., at

2755 (REHNQUIST, J., concurring in the judgment).22

24 In short, the concern of Beck regarding the risk of an unwarranted conviction is

simply not directly translatable to the deliberative process in which the capital

jury engages in determining the appropriate penalty, where there is no single

determinative issue apart from the general concern that the penalty be tailored

to the individual defendant and the offense.

25 Finally, we emphasize that informing the jury of the Governor's power to

commute a sentence of life without possibility of parole was merely an accurate

statement of a potential sentencing alternative. To describe the sentence as "life

imprisonment without possibility of parole" is simply inaccurate when, under

state law, the Governor possesses authority to commute that sentence to a lesser

sentence that includes the possibility of parole. The Briggs Instruction thus

corrects a misconception and supplies the jury with accurate information for itsdeliberation in selecting an appropriate sentence.23 See also n. 18, supra.

26 Having concluded that a capital sentencing jury's consideration of the

Governor's power to commute a life sentence is not prohibited by the Federal

Constitution, we now address respondent's contention that the Briggs

Instruction must be held unconstitutional because it fails to inform jurors alsothat a death sentence may be commuted.24 In essence, respondent complains

that the Briggs Instruction creates the misleading impression that the jury can

prevent the defendant's return to society only by imposing the death sentence,


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thus biasing the jury in favor of death. Respondent therefore concludes that "

[i]f . . . commutation is a factor properly to be considered by the jury, then basic

principles of fairness require that full disclosure be made with respect to

commutation." Brief for Respondent 35-36.

27 Thus, according to respondent, if the Federal Constitution permits the jury to

consider possible commutation of a life sentence, the Federal Constitutionrequires that the jury also be instructed that a death sentence may be

commuted. We find respondent's argument puzzling.25 If, as we must assume,

respondent's principal objection is that the impact of the Briggs Instruction is to

skew the jury toward imposing death, we fail to see how an instruction on the

Governor's power to commute death sentences as well as life sentences restores

the situation to one of "neutrality." Although such an instruction would be

"neutral" in the sense of giving the jury complete and factually accurate

information about the commutation power, it would not "balance" the impact of the Briggs Instruction, even assuming arguendo that the current instruction has

any impermissible skewing effect. Disclosure of the complete nature of the

commutation power would not eliminate any skewing in favor of death or

increase the reliability of the sentencing choice. A jury concerned about

preventing the defendant's potential return to society will not by any less

inclined to vote for the death penalty upon learning that even a death sentence

may not have such an effect. In fact, advising jurors that a death verdict is

theoretically modifiable, and thus not "final," may incline them to approachtheir sentencing decision with less appreciation for the gravity of their choice

and for the moral responsibility reposed in them as sentencers.

28 In short, an instruction disclosing the Governor's power to commute a death

sentence may operate to the defendant's distinct disadvantage. It is precisely

this perception that the defendant is prejudiced by an instruction on the possible

commutation of a death sentence that led the California Supreme Court in

People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964), to prohibit the giving of such an instruction.26 Thus, state law at the time of

respondent Ramos' trial precluded the giving of the "other half" of the

commutation instruction that respondent now argues is constitutionally

required.27

29 Moreover, we are not convinced by respondent's argument that the Briggs

Instruction alone impermissibly impels the jury toward voting for the death

sentence. Any aggravating factor presented by the prosecution has this impact.As we concluded in Part II, supra, the State is constitutionally entitled to permit

juror consideration of the Governor's power to commute a life sentence. This

information is relevant and factually accurate and was properly before the jury.


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IV

Moreover, the trial judge's instructions "did not place particular emphasis on

the role of [this factor] in the jury's ultimate decision."28 Zant v. Stephens, ---

U.S. ----, ----, 103 S.Ct. 2733, 2749, 75 L.ED.2D ---- (1983); CF. ID., AT ---- - -

---, 103 s.ct., at 2748-2749.29

30 In sum, the Briggs Instruction does not violate any of the substantive

limitations this Court's precedents have imposed on the capital sentencing

process. It does not preclude individualized sentencing determinations or

consideration of mitigating factors, nor does it impermissibly inject an element

too speculative for the jury's deliberation. Finally, its failure to inform the jury

also of the Governor's power to commute a death sentence does not render it

constitutionally infirm. Therefore, we defer to the State's identification of the

Governor's power to commute a life sentence as a substantive factor to be presented for the sentencing jury's consideration.

31 Our conclusion is not intended to override the contrary judgment of state

legislatures that capital sentencing juries in their States should not be permitted

to consider the Governor's power to commute a sentence.30 It is elementary that

States are free to provide greater protections in their criminal justice system

than the Federal Constitution requires. We sit as judges, not as legislators, and

the wisdom of the decision to permit juror consideration of possiblecommutation is best left to the States. We hold only that the Eighth and

Fourteenth Amendments do not prohibit such an instruction.

32 The judgment of the Supreme Court of California is reversed, and the case is

remanded for further proceedings not inconsistent with this opinion.

33 It is so ordered. Justice MARSHALL, with whom Justice BRENNAN joins,

and with whom Justice BLACKMUN joins in parts II-V, dissenting.

34 Even if I accepted the prevailing view that the death penalty may

constitutionally be imposed under certain circumstances, I could not agree that

a State may tip the balance in favor of death by informing the jury that the

defendant may eventually be released if he is not executed. In my view, the

Briggs Instruction is unconstitutional for three reasons. It is misleading. It

invites speculation and guesswork. And it injects into the capital sentencing

process a factor that bears no relation to the nature of the offense or the

character of the offender.

*


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II

cruel and unusual punishment forbidden by the Eighth and Fourteenth

Amendments. See Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973,

49 L.Ed.2d 859 (1976) (MARSHALL, J., dissenting); Furman v. Georgia, 408

U.S. 238, 358-369, 92 S.Ct. 2726, 2787-2792, 33 L.Ed.2d 346 (1972)

(MARSHALL, J., dissenting) I would vacate the death sentence on this basis

alone. However, even if I could accept the prevailing view that the death

penalty may constitutionally be imposed under certain circumstances, I would

vacate the de th sentence in this case.

36 Apart from the permissibility of ever instructing a jury to consider the

possibility of commutation, the Briggs Instruction is unconstitutional because it

misleads the jury about the scope of the Governor's clemency power. By

upholding that instruction, the majority authorizes "state-sanctioned fraud anddeceit in the most serious of all state actions: the taking of a human life."

People v. Ramos, 30 Cal.3d 553, 597, n. 21, 180 Cal.Rptr. 266, 291, n. 21, 639

P.2d 908, 933, n. 21 (1982). See ibid. (if the instruction were "part of a

contractual negotiation, it would arguably constitute a tortious deceit and a

fraudulent misrepresentation").

37 The Briggs Instruction may well mislead the jury into believing that it can

eliminate any possibility of commutation by imposing the death sentence. It

indicates that the Governor can commute a life sentence without possibility of

parole, but not that the Governor can also commute a death sentence. The

instruction thus erroneously suggests to the jury that a death sentence will

assure the defendant's permanent removal from society whereas the alternative

sentence will not. See People v. Haskett, 30 Cal.3d 841, 861, 180 Cal.Rptr. 640,

653, 640 P.2d 776, 789 (1982).

38 Presented with this choice, a jury may impose the death sentence to prevent the

governor from exercising his power to commute a life sentence without

possibility of parole.1 See Gardner v. Florida, 430 U.S. 349, 359, 97 S.Ct.

1197, 1205, 51 L.Ed.2d 393 (1977) (opinion of STEVENS, J.) ("we must

assume that in some cases [the instruction] will be decisive"). Yet such a

sentencing decision would be based on a grotesque mistake, for the Governor

also has the power to commute a death sentence. The possibility of this mistake

is deliberately injected into the sentencing process by the Briggs Instruction. In

my view, the Constitution simply does not permit a State to "stac[k] the deck"

against a capital defendant in this manner. Witherspoon v. Illinois, 391 U.S.

510, 523, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968). See Adams v. Texas,

448 U.S. 38, 43-44, 100 S.Ct. 2521, 2525-2526, 65 L.Ed.2d 581 (1980).


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III

39 The majority assumes that the issue is whether a "balanced" instruction would

cure the defect. Ante, at 1011. It then argues that an instruction about the

Governor's power to commute a death sentence would be seriously prejudicial

to the defendant and could not in any event have been given since it is

forbidden by state law. Id., at 1011-1012.2 This analysis is based on a

fundamental misunderstanding of the issue. The question is not whether a

balanced instruction would be more or less advantageous to defendants, butwhether the Briggs Instruction is misleading and therefore unconstitutional.

40 If the Briggs Instruction is indeed misleading, and the majority never denies

that it may lead jurors to impose a death sentence because they wrongly

assume that such a sentence will ensure that the defendant will not be released,

it can hardly be defended on the ground that a balanced instruction would be

more prejudicial.3 If, as the majority points out, ante, at 3458, there are

compelling reasons for not informing the jury as to the Governor's power tocommute death sentences, the solution is not to permit a misleading instruction,

but to prohibit altogether any instruction concerning commutation. This point

seems to have eluded the majority. For some inexplicable reason it concludes

that, since a balanced instruction is unavailable, the State is free to mislead the

jury about the Governor's clemency power. One searches the majority opinion

in vain for some explanation of how the State's inability to give a complete

statement of the Governor's commutation powers can possibly justify giving an

incomplete statement that is misleading.

41 I had thought it was common ground that the capital sentencing process must

be as reliable, rational and as free of mistakes as is humanly possible. Yet the

Court upholds the Briggs Instruction without ever disputing its substantial

potential to mislead. The Court thus authorizes the State to "cros[s] the line of

neutrality" and encourage death sentences by deceiving the jury. Witherspoon,

391 U.S., at 520, 88 S.Ct., at 1776.

42 The Briggs Instruction should be struck down not only because it is misleading,

but also because it invites the imposition of the death penalty on the basis of

mere speculation. As the majority concedes, ante, at 998 n. 8, the Briggs

Instruction invites the jury to consider the possibility that if it does not sentence

the defendant to death, he may be released through commutation and

subsequent parole. The instruction thus invites the jury to speculate about the possibility of release and to decide whether it wishes to foreclose that

possibility by imposing a death sentence. Respondent contends that a State may

not invite a jury to impose a death sentence on the basis of its ad hoc


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speculation about the likelihood of a release.

43 Instead of directly confronting this contention, the majority denies that the

principal effect of the Briggs Instruction is to invite the jury to predict the

actions of some future Governor and parole board. It instead characterizes the

Briggs Instruction as a mere proxy for a determination of future dangerousness.

Ante, at 1033, 1005-1006. It then reasons that because the Texas schemeupheld in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976),

requires the jury to determine a defendant's future dangerousness, Jurek "is

controlling," ante, at 1002, and the Briggs Instruction is therefore

constitutional.

44 The Briggs Instruction simply cannot be reduced to the functional equivalent of

the scheme upheld in Jurek. It neither requires nor ven suggests that a jury

should make a finding concerning the defendant's future dangerousness, and the

jury is provided with no evidence on which to base any such finding.4 More

importantly, whatever else the Briggs Instruction might incidentally lead juries

to consider, the one thing it expressly invites them to do is to impose the death

penalty on the basis of their ad hoc speculations as to the likelihood of

commutation.

45 Individual jury predictions of the possibility of commutation and parole

represent no more than "sheer speculation." Godfrey v. Georgia, 446 U.S. 420,

429, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980) (plurality opinion). A jury

simply has no basis for assessing the likelihood that a particular defendant will

eventually be released if he is not sentenced to death. To invite the jury to

indulge in such speculation is to ask it to foretell numerous imponderables: the

policies that may be adopted by unnamed future governors and parole officials,

any change in the defendant's character, as well as any other factors that might

be deemed relevant to the commutation and parole decisions. Yet these are

questions that "no human mind can answer . . . because they rest on future

events which are unpredictable." People v. Morse, 60 Cal.2d 631, 643, 36

Cal.Rptr. 201, 208, 388 P.2d 33, 40 (1964). This is inevitable in part because

the commutation decision itself is standardless.

46 The predictive inquiry becomes even more hazardous if, as the majority

suggests, the jury also considers whether the defendant would pose a threat to

society if and when he is released. A jury, in short, would have to assess not

only the likelihood that the defendant will be released, but also the likelihood

that his release will be a mistake. I fail to see how any jury can be expected to

forecast the future character of a particular defendant and the risk that some

State authority, armed with contemporaneous information about his character


16/35

IV

whose contents the jury can only guess at, will misjudge his character and

erroneously release him.

47 Sentencing decisions based on such groundless predictions are clearly arbitrary

and capricious. As the Tennessee Supreme Court put it, a death sentence

imposed on this basis is the product of "mere guesswork."5 If the predictions of

particular juries reflect little more than wild speculation, then differencesamong juries in their predictions are no less the product of caprice and not

reason. Yet the Briggs Instruction creates the possibility that one defendant

may be sentenced to die while another permitted to live because the first jury

perceived a greater likelihood of commutation and parole. This hardly

constitutes a meaningful, principled basis for distinguishing a case in which the

death penalty is imposed from one in which it is not. Gregg v. Georgia, 428

U.S., at 188, 96 S.Ct., at 2932, quoting Furman v. Georgia, 408 U.S., at 313, 92

S.Ct., at 2764 (WHITE, J., concurring). See also Godfrey v. Georgia, 446 U.S.,at 433, 100 S.Ct., at 1767; Lockett v. Ohio, 438 U.S. 586, 601, 98 S.Ct. 2954,

2963, 57 L.Ed.2d 973 (1978) (plurality opinion).

48 The imposition of death sentences on the basis of sheer speculation about

unknowables can only be arbitrary and capricious. Our prior cases have stressed

the heightened need for reliability and rationality in the determination of

whether an individual should be sentenced to death. Woodson v. North

Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)(opinion of Stewart, J.); Lockett v. Ohio, 438 U.S., at 604, 98 S.Ct., at 2964;

Gardner v. Florida, 430 U.S., at 359, 97 S.Ct., at 1205 (1977). The Briggs

Instruction injects a level of unreliability, uncertainty, and arbitrariness "that

cannot be tolerated in a capital case." Beck v. Alabama, 447 U.S. 625, 643, 100

S.Ct. 2382, 2392, 65 L.Ed.2d 392 (1980).

49 Even if the Briggs Instruction did not mislead the jury and call for guesswork,

it would be unconstitutional for the independent reason that it introduces an

impermissible factor into the capital sentencing process.

50 The instruction invites juries to impose the death sentence to eliminate the

possibility of eventual release through commutation and parole. Yet that

possibility bears no relation to the defendant's character or the nature of the

crime, or to any generally accepted justification for the death penalty. Since anyfactor considered by the jury may be decisive in its decision to sentence the

defendant to death, Gardner v. Florida, 430 U.S., at 359, 97 S.Ct., at 1205,

(Opinion of STEVENS, J.), the jury clearly should not be permitted to consider


17/35

just any factor. Rather, it should only be permitted to consider factors which

can provide a principled basis for imposing a death sentence rather than a life

sentence. See Zant v. Stephens, --- U.S. ----, ----, 103 S.Ct. 2733, 2747, 75

L.Ed.2d ---- (1983) (noting that jury may not consider race, religion, or political

affiliation, and suggesting that factors which are truly mitigating cannot be the

basis for imposing a death sentence).

51 In my view, the Constitution forbids the jury from considering any factor which

bears no relation to the defendant's character or the nature of his crime, or

which is unrelated to any penological objective which can justify imposition of

the death penalty. Our cases establish that a capital sentencing proceeding

should focus on the nature of the criminal act and the character of the offender.

"[I]n order to minimize the risk that the death penalty would be imposed on a

capriciously selected group of offenders, the decision to impose it [must] be

guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." Gregg v.

Georgia, 428 U.S., at 199, 96 S.Ct., at 2937 (Opinion of Stewart, POWELL,

STEVENS, JJ.). The Court has thus stressed that the appropriateness of the

death penalty should depend on "relevant facets of the character and record of

the individual offender." Woodson v. North Carolina, 428 U.S., at 304, 96

S.Ct., at 2991. C nsiderations such as the extent of premeditation, the nature of

the crime, and any prior criminal activity have been considered relevant to the

determination of the appropriate sentence. The requirement that the jury focuson factors such as these is designed to ensure that the punishment will be

"tailored to [the defendant's] personal responsibility and moral guilt." Enmund

v. Florida, --- U.S. ----, ----, 102 S.Ct. 3368, 3378, 73 L.Ed.2d 1140 (1982).

52 In sharp contrast, the mere possibility of a commutation "is wholly and utterly

foreign to"6 the defendant's guilt and "not even remotely related to"7 his

blameworthiness. That possibility bears absolutely no relation to the nature of

the offense or the character of the individual. Whether a defendant's crimewarrants the death penalty should not turn on "a speculative possibility that

may or may not occur."8

53 The possibility of commutation has no relationship to the State purposes that

this Court has said can justify the death penalty. Capital punishment simply

cannot be justified as necessary to keep criminals off the streets. Whatever

might be said concerning retribution and deterrence as justifications for capital

punishment, it cannot be seriously defended as necessary to insulate the publicfrom persons likely to commit crimes in the future. Life imprisonment and, if

necessary, solitary confinement would fully accomplish the aim of

incapacitation. See Gregg v. Georgia, 428 U.S., at 236, n. 14, 96 S.Ct., at 2975,


18/35

n. 14 (MARSHALL, J., dissenting); Furman v. Georgia, 408 U.S., at 355-359,

92 S.Ct., at 2785-2787 (1972) (MARSHALL, J., concurring). That the death

penalty cannot be justified by considerations of incapacitation was implicitly

acknowledged in Gregg, where the joint opinion of Justices Stewart, POWELL,

and STEVENS relied entirely on retribution and deterrence as possible

justifications for the death penalty, 428 U.S., at 183, 96 S.Ct., at 2929, and

mentioned incapacitation only in passing as "[a]nother purpose that has beendiscussed." Id., at 183 n. 28, 96 S.Ct., at 2929 n. 28.9

54 This conclusion is in no way altered by California's decision to establish an

alternative sentence to death that does not guarantee permanent confinement. If

a death sentence is inappropriate, a State cannot justify its imposition on the

ground that the alternative it has provided, which in this case leaves open the

possibility of future release, may be considered inadequate by the jury. An

analogy may be usefully drawn to this Court's decision in Beck v. Alabama, 447U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck we struck down an

instruction which created a risk that a defendant would be convicted of a crime

of which he was not guilty. We necessarily rejected any suggestion that such an

instruction could be justified by the f ct that the alternative it presented was no

conviction at all. Presenting the jury in a capital case with the choice between

an unwarranted conviction and an acquittal is impermissible because it may

induce the jury to convict simply to ensure that the defendant receives some

punishment. Such a choice "would seem inevitably to enhance the risk of anunwarranted conviction." Id., at 637, 100 S.Ct., at 2389. Similarly, a defendant

may not be sentenced to death simply because the alternative the State has

adopted does not ensure incapacitation. The State may not use the

unavailability of permanent imprisonment to induce juries to sentence to death

defendants whose appropriate punishment is something less severe. "That death

should be inflicted when a life sentence is appropriate is an abhorrent thought."

State v. White, 27 N.J. 158, 178, 142 A.2d 65, 76 (N.J.1958).

55 Finally, the Briggs Instruction impermissibly invites jurors to impose death

sentences on the basis of their desire to foreclose a duly authorized review of

their judgment of conviction. Although the power to grant clemency is not

restricted by standards, it is reasonable to assume that it will at least be

exercised when the Governor concludes that "the criminal justice system has

unjustly convicted a defendant." Roberts v. Louisiana, 428 U.S. 325, 350, 96

S.Ct. 3001, 3014, 49 L.Ed.2d 974 (1976) (WHITE, J., joined by THE CHIEF

JUSTICE and BLACKMUN and REHNQUIST, JJ., dissenting). Yet the very jury whose judgment of conviction would be the subject of any future

application for clemency is led to believe that it may impose the death sentence

to preclude such an application.10 I am aware of no authority, and the majority


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V

cites none, for the proposition that a judicial body may base any decision, no

less one concerning the life or death of an individual, on a desire to immunize

its own actions from duly authorized reexamination.11

56 The conclusion that juries should not be permitted to consider commutation and parole in deciding the appropriate sentence is shared by nearly every

jurisdiction which has considered the question. In prior decisions this Court has

consistently sought "guidance . . . from the objective evidence of the country's

present judgment" in determining the constitutionality of particular capital

sentencing schemes. Coker v. Georgia, 433 U.S. 584, 593, 97 S.Ct. 2861, 2866,

53 L.Ed.2d 982 (1977). See, e.g., Solem v. Helm, --- U.S. ----, at ----, 103 S.Ct.

3001, at 3010, 3013-3014, 75 L.Ed.2d ---- (1983); Enmund, --- U.S. ----, at ----,

103 S.Ct. 3368, at 3378, 73 L.Ed.2d 1140; id., at ----, 103 S.Ct., at 3385(O'CONNOR, J., dissenting); Beck v. Alabama, 447 U.S , at 637, 100 S.Ct., at

2389; Gregg v. Georgia, 428 U.S., at 179-182, 96 S.Ct., at 2928-2929;

Woodson v. North Carolina, 428 U.S., at 294-299, 96 S.Ct., at 2986-2987. With

scarcely a word of explanation, today's decision dismisses the overwhelming

weight of authority establishing that a jury may not be informed of the

possibility that a defendant may be released if he is not sentenced to death.

57 The propriety of allowing a sentencing jury to consider the power of aGovernor to commute a sentence or of a parole board to grant parole has been

considered in 28 jurisdictions in addition to California.12 Of those jurisdictions,

25 have concluded, as did the California Supreme Court in this case, that the

jury should not consider the possibility of pardon, parole or commutation.13 In

only three jurisdictions has it been deemed proper to allow a jury to consider

the possibility that a sentence can be reduced by commutation or parole, and

two of those cases14 were decided before Furman v. Georgia, 408 U.S. 238, 92

S.Ct. 2726, 33 L.Ed.2d 346 (1972). Only one post- Furman decision hasapproved of jury consideration of parole or commutation,15 and that decision

concerned a capital sentencing scheme in which the jury merely recommends

the sentence. Moreover, not only has the view embraced by the majority been

almost uniformly rejected, but in those states which formerly permitted jury

consideration of parole and commutation the trend has been to renounce the

prior decisions.16

58 I would have thought that this impressive consensus would "weigh heavily inthe balance" in determining the constitutionality of the Briggs Instruction.

Enmund v. Florida, --- U.S., at ----, 103 S.Ct., at 3376. The majority breezily

dismisses that consensus with the terse statement that "States are free to provide


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VI

greater protections . . . than the Federal Constitution requires." Ante, at 1014.

This observation hardly suffices as an explanation, however, since the same

thing could have been said in Enmund, Coker, Beck, and Woodson yet in each

of those decisions the Court looked to prevailing standards for guidance.

59 The majority's approach is inconsistent with the compelling reasons for

according "due regard," Coker v. Georgia, 433 U.S., at 592, 97 S.Ct., at 2866,to the contemporary judgments of other jurisdictions. This Court has stressed

that the "Eighth Amendment must draw its meaning from the evolving

standards of decency that mark the progress of a maturing society," Trop v.

Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality

opinion), and that "[c]entral to the application of the Amendment is a

determination of contemporary standards regarding the infliction of

punishment." Woodson v. North Carolina, 428 U.S., at 288, 96 S.Ct., at 2983

(opinion of Stewart, POWELL, STEVENS, JJ.). Moreover, unless this Court's judgment is "informed by objective factors to the maximum possible extent,"

its decisions may reflect "merely the subjective views of individual Justices."

Coker, supra, at 592, 97 S.Ct., at 2866 (plurality opinion).

60 Whatever interest a State may have in imposing the death penalty, there is no

justification for a misleading instruction obviously calculated to increase thelikelihood of a death sentence by inviting the jury to speculate about the

possibility that the defendant will eventually be released if he is not executed. I

would vacate respondent's death sentence.

61 Justice BLACKMUN, dissenting.

62 I join Parts II through V of Justice MARSHALL's opinion in dissent.

63 I had understood the issue in this case to be whether a State constitutionally

may instruct a jury about the governor's power to commute a sentence of life

without parole. That issue involves jury consideration of the probability of

action by the incumbent governor or by future governors. Instead, the Court, on

its own, redefines the issue in terms of the dangerousness of the respondent, an

issue that involves jury consideration of the probability that respondent will

ommit acts of violence in the future. Ante, at 1002-1003. As both Justice

MARSHALL, ante, at 1018-1019, and Justice STEVENS, post, at 1030, so

forcefully point out, the two questions do not relate to each other. Neither the

State of California nor the solitary dissenter in the State's Supreme Court


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ventured such an argument.

64 The issue actually presented is an important one, and there may be arguments

supportive of the instruction. The Court, however, chooses to present none.

Instead, it approves the Briggs Instruction by substituting an intellectual sleight

of hand for legal analysis. This kind of appellate review compounds the

original unfairness of the instruction itself, and thereby does the rule of lawdisservice. I dissent.

65 Justice STEVENS, dissenting.

66 No rule of law required the Court to hear this case. We granted certiorari only

because at least four Members of the Court determined—as a matter of

discretion—that review of the constitutionality of the so-called BriggsInstruction would represent a wise use of the Court's scarce resources.

67 When certiorari was granted in this case, the Court had been informed by the

respondent that the Briggs Instruction is unique: "Only California requires that

juries be instructed selectively on the Governor's power to commute life

without parole sentences." Further, the Court had been informed, accurately,

that the overwhelming number of jurisdictions condemn any comment

whatsoever in a capital case on the Governor's power to commute. Thatstatement was followed by a half-page list of citations to state court decisions.

Opposition to Pet. for Cert. 6-7. See ante, at 3465-3467 (Justice MARSHALL,

dissenting). These facts shed an illuminating light on the Court's perception of

how its discretion should be exercised.

68 Even if one were to agree with the Court's conclusion that the instruction does

not violate the defendant's procedural rights, it would nevertheless be fair to ask

what harm would have been done to the administration of justice by state courtsif the California court had been left undisturbed in its determination. It is clear

that omission of the instruction could not conceivably prejudice the prosecutor's

legitimate interests. Surely if the character of an offense and the character of

the offender are such that death is the proper penalty, the omission of a

comment on the Governor's power to commute a life sentence would not

preclude the jury from returning the proper verdict. If it were true that this

instruction may make the difference between life and death in a case in which

the scales are otherwise evenly balanced, that is a reason why the instructionshould not be given—not a reason for giving it. For the existence of the rarely

exercised power of commutation has absolutely nothing to do with the

defendant's culpability or his capacity for rehabilitation. The Governor's power


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See Cal.Penal Code Ann. § 190.2 (West Supp.1983). The alleged special

circumstance found true in respondent's case was commission of the murder

to commute is entirely different from any relevant aggravating circumstance

that may legitimately impel the jury toward voting for the death penalty. See

ante, at 1012. The Briggs Instruction has no greater justification than an

instruction to the jury that if the scales are evenly balanced, you should

remember that more murders have been committed by people whose names

begin with the initial "S" than with any other letter.

69 No matter how trivial the impact of the instruction may be, it is fundamentally

wrong for the presiding judge at the trial—who should personify the

evenhanded administration of justice—to tell the jury, indirectly to be sure, that

doubt concerning the proper penalty should be resolved in favor of the most

certain method of preventing the defendant from ever walking the streets again.

70 The Court concludes its opinion by solemnly noting that we "sit as judges, not

as legislators, and the wisdom of the decision to permit juror consideration of

possible commutation is best left to the States." Ante, at 1014. Why, I ask with

all du respect, did not the Justices who voted to grant certiorari in this case

allow the wisdom of state judges to prevail in California, especially when they

have taken a position consistent with those of state judges in Alabama,

Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Kentucky, Louisiana,

Maryland, Missouri, Nebraska, Nevada, New Jersey, North Carolina,

Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Virginia,

Washington, West Virginia, and Wyoming?

71 I repeat, no rule of law commanded the Court to grant certiorari. No other State

would have been required to follow the California precedent if it had been

permitted to stand. Nothing more than an interest in facilitating the imposition

of the death penalty in California justified this Court's exercise of its discretion

to review the judgment of the California Supreme Court. That interest, in my

opinion, is not sufficient to warrant this Court's review of the validity of a jury

instruction when the wisdom of giving that instruction is plainly a matter that is

best left to the States.

72 For the reasons stated in Parts II to V of Justice MARSHALL's opinion, I

disagree with the Court's decision on the merits. But even if the Court were

correct on the merits, I would still firmly disagree with its decision to grant

certiorari. I therefore respectfully dissent.

1


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during the course of a robbery. Ibid. § 190.2(a)(17)(i).

Respondent offered evidence to show, inter alia, that respondent's adoptive

parents had died while he was young, that he then came under the bad influence

of his codefendant, that respondent had mild congenital brain damage, a low

intelligence quotient, and borderline schizophrenia, that he was under the

influence of alcohol and drugs at the time of the offenses, and that he intendedonly to "graze" the victims when he shot them.

The jury "shall impose a sentence of death if [it] concludes that the aggravating

circumstances outweigh the mitigating circumstances" and "shall impose" a

sentence of life without possibility of parole if the mitigating circumstances

outweigh the aggravating circumstances. Cal.Penal Code Ann. § 190.3 (West

Supp.1983).

Ibid. This instruction, referred to hereinafter as the "Briggs Instruction," was

incorporated into the California Penal Code as a result of a 1978 voter initiative

popularly known as the Briggs Initiative.

The trial judge gave the instruction over the objection of respondent on the

ground that the instruction was mandated by legislation. Tr. 718.

In dissent Justice Richardson concluded that the Briggs Instruction was

harmless and nonprejudicial because it merely informs jurors of informationthat is a matter of common knowledge. Further, the instruction is relevant

because the issue of parole is injected into the sentencing process by one of the

alternative punishments the jury must consider: life without possibility of

parole. In addition, the dissent concluded that the instruction's failure also to

inform the jury of the Governor's power to commute a death sentence did not

render it constitutionally infirm. In People v. Morse, 60 Cal.2d 631, 36

Cal.Rptr. 201, 388 P.2d 33 (1964), the court had held, on the basis of its

supervisory powers, that jurors should not be instructed that a death sentencecould be commuted because it reduced the jury's sense of responsibility in

imposing a capital sentence. Therefore, the Briggs Instruction should not be

struck down because it fails to require an instruction of the type condemned in

Morse.

The Supreme Court of California also concluded that certain testimony by the

defense psychiatrist was inadmissible as a matter of state evidence law. Over

defense objection, at the penalty phase the prosecutor had been allowed to elicit

on cross-examination of the psychiatrist that respondent was aware of the

Governor's power to commute a life sentence without parole to a lesser sentence

that included the possibility of parole. According to the psychiatrist, respondent

had indicated that, were he to be released on parole after 10 or 20 years in

2

3

4

5

6

7


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prison, "he would probably have built up within himself such feelings of anger

and frustration that he would attempt to take revenge on anyone involved in the

trial, including the district attorney who prosecuted the case, the judge who

presided over it, and the jurors who voted to convict him." 30 Cal.3d, at 598,

180 Cal.Rptr., at 292, 639 P.2d, at 934 (footnote omitted). The State Supreme

Court ruled that the trial court had abused its discretion in admitting this

testimony because the prejudice created by admission of the testimonyoutweighed its probative value. See Cal.Evid.Code Ann. § 352 (West 1966).

Respondent argues that this Court should not reach the constitutional issues

raised by the State because the above ruling represents a possible adequate and

independent state ground for the State Supreme Court's decision to reverse the

death sentence. We find no bar to reaching the federal questions. The State

Supreme Court quite clearly rested its reversal of the death sentence solely on

the Federal Constitution. 30 Cal.3d, at 562, 600, 180 Cal.Rptr., at 270, 294, 639P.2d, at 912, 936. Moreover, with respect to its ruling on the evidentiary

question, the court did not determine whether this error warranted reversal of

the death penalty. It held only that the testimony "should not be admitted if the

penalty phase is retried." Id., at 600, n. 22, 180 Cal.Rptr., at 292, n. 22, 639

P.2d at 934, n. 22. Therefore, the adequacy of this ruling to support reversal of

the sentence was not addressed by the state court. See Michigan v. Long, ---

U.S. ----, 103 S.Ct. 3469, 75 L.Ed.2d ---- (1983). Of course, on remand from

this Court, the state court is free to determine whether as a matter of state law

this evidentiary error is a sufficient basis for reversing the death sentence.

In addition, the Supreme Court of California expressly declined to decide

whether the Briggs Instruction independently violates any provisions of the

State Constitution. Id., at 600, n. 24, 180 Cal.Rptr., at 294, n. 24, 639 P.2d, at

936, n. 24. As with the evidentiary issue, of course, the state court may address

this question on remand.

The Supreme Court of California construed the Briggs Instruction as invitingcapital sentencing juries to consider the commutation power in its sentencing

determination. See 30 Cal.3d, at 599-600, 180 Cal.Rptr., at 293-294, 639 P.2d,

at 935-936. We view the statute accordingly.

See Eddings v. Oklahoma, 455 U.S. 104, 117-118, 102 S.Ct. 869, 877-878, 71

L.Ed.2d 1 (O'CONNOR, J., concurring); Beck v. Alabama, 447 U.S. 625, 637-

638, 100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392 (1980) (opinion of

STEVENS, J., joined by BURGER, C.J., BRENNAN, Stewart, BLACKMUN,and POWELL, JJ.); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57

L.Ed.2d 973 (1978) (opinion of BURGER, C.J., Stewart, POWELL, and

STEVENS, JJ.); Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197,

8

9


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1204, 51 L.Ed.2d 393 (1977) (opinion of STEVENS, Stewart, and POWELL,

JJ.); id., at 363-364, 97 S.Ct., at 1207 (WHITE, J., concurring in the judgment);

Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49

L.Ed.2d 944 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek

v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality

opinion); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49

L.Ed.2d 974 (1976) (plurality opinion).

Moreover, in approving the sentencing schemes of Georgia, Florida, and Texas,

the joint opinions of Justices Stewart, POWELL, and STEVENS did not

substitute their views for those of the state legislatures as to the particular

substantive factors chosen to narrow the class of defendants eligible for the

death penalty. For example, under the Georgia scheme examined in Gregg, at

least one of ten specified aggravating circumstances must be found beyond a

reasonable doubt before the jury may consider whether death is the appropriate

punishment for the individual defendant. Id., at 164-165, 96 S.Ct., at 2920. By

contrast, under the Texas scheme approved in Jurek v. Texas, 428 U.S. 262, 96

S.Ct. 2950, 49 L.Ed.2d 929 (1976), the State attempted to limit the category of

defendants upon whom the death sentence may be imposed by narrowing

capital homicides to intentional and knowing murders committed in five

particular situations. See 428 U.S., at 268, 96 S.Ct., at 2954. In upholding the

Texas scheme, the joint opinion observed: "While Texas has not adopted a list

of statutory aggravating circumstances the existence of which can justify the

imposition of the death penalty as have Georgia and Florida, its action in

narrowing the categories of murders for which a death sentence may ever be

imposed serves much the same purpose." Id., at 270, 96 S.Ct., at 2955.

Cf. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)

(reversing death sentence that rested on unconstitutionally broad and vagueconstruction of an aggravating circumstance).

"[W]e believe that in capital cases the fundamental respect for humanity

underlying the Eighth Amendment . . . requires consideration of the character

and record of the individual offender and the circumstances of the particular

offense as a constitutionally indispensable part of the process of inflicting the

penalty of death." Woodson, supra, at 304, 96 S.Ct., at 2991. See also Gregg v.

Georgia, 428 U.S., at 189, 96 S.Ct., at 2932 (quoting Pennsylvania ex rel.Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937)).

See also Zant v. Stephens, --- U.S. ---, ---, 103 S.Ct. 2733, 2751, 75 L.Ed.2d ----

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(1983); id., at ---, 103 S.Ct., at ---- (REHNQUIST, J., concurring in the

judgment); Enmund v. Florida, --- U.S. ---, ---, 102 S.Ct. 3368, 3378, 73

L.Ed.2d 1140 (1983); id., at --- - ---, 102 S.Ct., at 3383-3386 (O'CONNOR, J.,

dissenting); Eddings v. Oklahoma, 455 U.S. 104, 110-112, 102 S.Ct. 869, 874-

875, 71 L.Ed.2d 1; id., at 118, 102 S.Ct., at 878 (O'CONNOR, J., concurring);

id., at 121-122, 102 S.Ct., at 879-880 (BURGER, C.J., dissenting).

See also 30 Cal.3d, at 596, 180 Cal.Rptr., at 291, 639 P.2d, at 933 ("[The

Briggs Instruction] injects into the sentencing calculus an entirely irrelevant

factor . . . ."); id., at 600, 180 Cal.Rptr., at 291, 639 P.2d, at 933.

The questions are:

" '(1) whether the conduct of the defendant that caused the death of the

deceased was committed deliberately and with the reasonable expectation that

the death of the deceased or another would result;

'(2) whether there is a probability that the defendant would commit criminal

acts of violence that would constitute a continuing threat to society; and

'(3) if raised by the evidence, whether the conduct of the defendant in killing

the deceased was unreasonable in response to the provocation, if any, by the

deceased.' Art. 37.071(b) (Supp.1975-1976)." 428 U.S., at 269, 96 S.Ct., at

2955.

This analogy between the matters raised in the jurors' minds by the Briggs

Instruction and the Texas statutory factor of the defendant's future

dangerousness is no "intellectual sleight of hand." Post, at 1029

(BLACKMUN, J., dissenting). To avoid this analogy is to ignore the process of

thought that the Briggs Instruction inevitably engenders in the jury's

deliberations. To be sure, the Briggs Instruction by its terms may incline their

thoughts to the probability that the current or some future Governor might

commute the defendant's sentence. Nevertheless, whatever the jurors' thoughts

on this probability alone, the inextricably linked thought is whether it is

desirable that this defendant be released into society. In evaluating this

question, the jury will consider the defendant's potential for reform and

whether his probable future behavior counsels against the desirability of his

release into society.

See also ABA Standards for Criminal Justice 18-2.5(c)(i) (2d ed.1980) (giving

as example of legitimate reason for selecting total confinement fact that"confinement is necessary in order to protect the public from further serious

criminal activity by the defendant").

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We also observe that, with respect to the relevance of the information conveyed

by the Briggs Instruction, the issue of parole or commutation is presented by

the language used to describe one of the jury's sentencing choices— i.e., life

imprisonment without possibility of parole. The State of California reasonably

could have concluded that, while jurors are generally aware of the Governor's

power to commute a death sentence, most jurors would not be aware that the

Governor also may commute a sentence of life imprisonment without possibility of parole and that they should be so informed to avoid any possible

misconception conveyed by the description of the sentencing alternative.

In dissent Justice MARSHALL argues that if a balanced instruction cannot or

should not be given, "the solution is not to permit a misleading instruction, but

to prohibit altogether any instruction concerning commutation." Post, at 1017-

1018. This observation is incorrect for at least two reasons. First, as discussed

below, see n. 27, infra, we do not suggest that there would be any federalconstitutional infirmity in giving an instruction concerning the Governor's

power to commute the death sentence. We note only that such comment is

prohibited under state law. Second, the Briggs Instruction simply is not

misleading. On the contrary, the instruction gives the jury accurate information

in that it corrects a misleading description of a sentencing choice available to

the jury. Although, as Justice Richardson noted below, 180 Cal.Rptr., at 296,

639 P.2d, at 938, most jurors may have a general awareness of the availability

of commutation and parole, the statutory description of one of the sentencing

choices as "life imprisonment without possibility of parole" may generate the

misleading impression that the Governor could not commute this sentence to

one that included the possibility of parole. The Briggs Instruction merely

dispels that possible misunderstanding. Further, the defendant may offer

evidence or argument regarding the commutation power, and respondent's

counsel addressed the possibility of the Governor's commutation of a life

sentence in his closing argument. Tr. 1161-1162. The Briggs Instruction

thereby accomplishes the same result that would occur if, instead of requiring

the Briggs Instruction, the State merely described the sentence statutorily as

"life imprisonment with possibility of commutation." Surely, the respondent

cannot argue that the Constitution prohibits the State from accurately

characterizing its sentencing choices.

We note further that respondent does not, and indeed could not, contend that

the California sentencing scheme violates the directive of Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The California statute in

question permits the defendant to present any evidence to show that a penaltyless than death is appropriate in his case. Cal.Penal Code Ann. § 190.3 (West

Supp.1983).

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In addition, we note that there is no assurance that a Texas jury acts on a more

particularized and less speculative informational base when it considers the

defendant's future dangerousness than does a California jury. In Estelle v.

Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the Court noted

that expert psychiatric testimony about the defendant is not necessary to prove

the defendant's future dangerousness under the Texas scheme.

"[U]nder the Texas capital sentencing procedure, the inquiry necessary for the

jury's resolution of the future dangerousness issue is in no sense confined to the

province of psychiatric experts. . . . While in no sense disapproving the use of

psychiatric testimony bearing on the issue of future dangerousness, the holding

in Jurek was guided by the recognition that the inquiry mandated by Texas law

does not require resort to medical experts." Id., at 472-473, 101 S.Ct., at 1877-

1878.

Consequently, as in the California scheme, a Texas jury's evaluation of the

defendant's future dangerousness may rest on lay testimony about the

defendant's character and background and the inferences to be drawn

therefrom.

"[S]entencing decisions rest on a far-reaching inquiry into countless facts and

circumstances and not on the type of proof of particular elements that returning

a conviction does." Zant v. Stephens, --- U.S., at ---, 103 S.Ct., at 2756

(REHNQUIST, J., concurring in the judgment).

Consideration of the commutation power does not undermine the jury's

statutory responsibility to weigh aggravating factors against mitigating factors

and impose death only if the former outweigh the latter. The desirability of the

defendant's release into society is simply one matter that enters into the

weighing process. Moreover, the fact that the jury is given no specific guidance

on how the commutation factor is to figure into its determination presents no

constitutional problem. As we held in Zant v. Stephens, supra, theconstitutional prohibition on arbitrary and capricious capital sentencing

determinations is not violated by a capital sentencing "scheme that permits the

jury to exercise unbridled discretion in determining whether the death penalty

should be imposed after i has found that the defendant is a member of the class

made eligible for that penalty by statute." --- U.S., at ---, 103 S.Ct., at 2742.

See also ALI, Model Penal Code § 210.6 (Proposed Official Draft, 1962)

(providing that, besides aggravating and mitigating factors, the sentencer "shalltake into account . . . any other facts that it deems relevant"). The Model Penal

Code further states that the court at the sentencing stage "shall inform the jury

of the nature of the sentence of imprisonment that may be imposed, including

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its implication with respect to possible release upon parole, if the jury verdict is

against sentence of death." Ibid.

Our approval in Gregg v. Georgia of the wide-ranging evidence informing the

penalty determination in Georgia is equally appropriate here:

"We think that the Georgia court wisely has chosen not to impose unnecessaryrestrictions on the evidence that can be offered at such a [presentence] hearing

and to approve open and far-ranging argument. . . . So long as the evidence

introduced and the arguments made at the presentence hearing do not prejudice

a defendant, it is preferable not to impose restrictions. We think it desirable for

the jury to have as much information before it as possible when it makes the

sentencing decision." 428 U.S., at 203-204, 96 S.Ct., at 2939.

Under Art. V, § 8 of the California Constitution and its implementing statutory

sections, Cal.Penal Code Ann. § 4800 et seq. (West 1982), the Governor

possesses broad authority to reprieve, pardon, or commute sentences, including

a death sentence.

Although the state statute containing the Briggs Instruction itself requires

instruction only on the Governor's power to commute a sentence of life without

possibility of parole, Cal.Penal Code Ann. § 190.3 (West Supp.1983), the trial

judge in this case preceded this specific instruction with the additional

statement that the Governor "is empowered to grant a reprieve, pardon, or commutation of a sentence following conviction of a crime." Tr. 1189-1190

(emphasis added). This statement is ambiguous and might be construed as

advising the jury of the Governor's power to commute a death sentence, as well

as a life sentence. However, at oral argument both the State and respondent

argued that the ambiguity in the quoted sentence should not be interpreted as

advising the jury of the possible commutation of a death sentence. Tr. of Oral

Arg. 10, 18. More significantly, the State Supreme Court did not interpret the

instruction as providing full disclosure of the extent of the Governor's power of commutation. In fact, it affirmatively concluded that the "jury is not informed

that a sentence of death may be . . . commuted or modified." 30 Cal.3d, at 597,

180 Cal.Rptr., at 292, 639 P.2d, at 933 (emphasis in original). We defer to the

State Supreme Court's finding on this point. See, e.g., Wolfe v. North Carolina,

364 U.S. 177, 196, 80 S.Ct. 1482, 1492, 4 L.Ed.2d 1650 (1960); Lloyd A. Fry

Roofing Co. v. Wood, 344 U.S. 157, 160, 73 S.Ct. 204, 206, 97 L.Ed. 168

(1952).

We observe incidentally that respondent at no time requested that the trial judge

also charge the jury regarding the Governor's power to commute a death

sentence.

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Based on its supervisory powers, the Supreme Court of California held in

Morse that a capital sentencing jury should not be instructed on either the trial

judge's or the Governor's possible reduction of a death penalty. The court

concluded that, by suggesting that some other authority would review the

propriety of the jury's decision to impose death, the instruction tended to reduce

the jury's sense of responsibility in fixing the penalty. 60 Cal.2d, at 652, 36

Cal.Rptr., at 214, 388 P.2d, at 46.

Given our conclusion in Part II, supra, that the State may constitutionally

permit consideration of the Governor's power to commute a sentence of life

imprisonmen without possibility of parole, we do not suggest, of course, that

the Federal Constitution prohibits an instruction regarding the Governor's

power to commute a death sentence.

The trial judge instructed the jury to "consider all of the evidence and all of the

applicable instructions on the law which have been received during any part of

the trial of this case" and to consider "any other circumstances which extenuate

the gravity of the crime even though it is not a legal excuse for the crime." Tr.

1188-1189.

Justice MARSHALL'S dissent claims that the Briggs Instruction encourages

the jury to impose the death penalty on the basis of an erroneous assumption

that a defendant sentenced to death will not be released. Post, at ---. We

emphasize that the instruction is informational and satisfies the Jurek requirement that "[w]hat is essential is that the jury have before it all possible

relevant information ab

California v. Ramos, 463 U.S. 992 (1983)

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